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A major shoe company’s claim that a store manager was exempt from overtime pay although most of his work was routine sales and merchandise stocking has gotten the boot from a state appeal court. Friday’s ruling wasn’t a total loss for the company, however, with San Francisco’s 1st District Court of Appeal ordering a reduction in attorney fees and holding that the employee wasn’t entitled to more than $17,000 for unpaid meal and rest periods. John Murphy, who managed the Kenneth Cole store in the San Francisco Shopping Centre for two years until resigning in June 2002, filed a complaint with the state’s Labor Commission, claiming he had been misclassified as a managerial employee exempt from overtime pay. Despite his title, he argued, 90 percent of his time was devoted to the same routine work that was handled by other employees. Kenneth Cole maintained that Murphy handled both exempt and nonexempt duties, but that as a titled manager he wasn’t due overtime wages. The Labor Commission sided with Murphy, awarding him nearly $27,000 in overtime pay and more than $7,000 in so-called waiting-time penalties for Kenneth Cole’s failure to timely pay Murphy. On review, San Francisco Superior Court Judge Anne Bouliane increased the amounts owed Murphy and ruled he was also owed overtime pay for missed meal and rest periods. In total, Bouliane awarded more than $64,000 in overtime pay and in excess of $62,000 in attorneys fees. The 1st District on Friday affirmed most of Bouliane’s judgment, ruling that there was plenty of evidence that Murphy wasn’t exempt from overtime. “Rather, KCP’s expectations of Murphy encouraged him to spend the vast majority of his time at work doing the same work as those he was supposedly managing,” Justice James Marchiano wrote. “Murphy was a nominal coxswain who performed most of the time as an oarsman alongside the rest of the crew.” Justices Douglas Swager and Sandra Margulies concurred. However, the justices threw out Murphy’s claims for rest and meal period pay, saying he hadn’t timely raised these issues with the Labor Commission. “Adding a new claim for alleged wrongs that were never presented below is not a natural consequence of continuing the litigation,” Marchiano wrote. The justices refused, though, to dismiss the waiting-time penalty, holding that Kenneth Cole didn’t have a good-faith reason for disputing Murphy’s nonexempt status. They noted that Murphy had complained about lack of overtime pay to a general manager at the local flagship store, to a district manager and to a person in the corporate office’s payroll department. “This evidence supports the finding that KCP knew of Murphy’s claim to overtime pay,” Marchiano wrote, “but did nothing to discern Murphy’s actual job duties required at his store or respond to his concerns about overtime.” The justices remanded to the trial court to consider reducing attorneys fees based on the 1st District’s partial reversal. The ruling is Murphy v. Kenneth Cole Productions, 05 C.D.O.S. 10193.

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